Federal agency on education in the Russian Federation
State educational institution
Higher professional education
“Tambov State University named after G.R. Derzhavin"
ABSTRACT
on legal support of the economy
on the topic of: “Legal status of business entities”
Performed:
4th year student, group 402
specialty "World Economy"
Tribunskaya U.G.
Teacher:
Trofimov V.V.
Tambov 2009
Introduction………………………………………………………………………………….3
Limited Liability Company……………………………. 7
Additional liability company…………………………10
Joint stock company…………………………………………………….11
Basic provisions on business companies………………………..5
Types of business entities……………………………………………7
Conclusion………………………………………………………………………………...17
References……………………………………………………………..19
Introduction
The basis of any economy is production - production of products, performance of work, provision of services. Without production there can be no consumption, you can only eat away the accumulated wealth for some time, ultimately being left with nothing. That is why the enterprise is the main link of the economy. The state of the entire economy depends on how effective the activities of enterprises are, what their financial condition is, and their social “health.” The base of the complex pyramid of the country's economy is enterprises.
An enterprise is an economic unit that has economic and administrative independence stipulated by law, i.e. rights legal entity, organizational, technical, economic and social unity, conditioned by the common goals of activity: production and sale of goods, work, services and making a profit.
Any entrepreneurial activity is carried out within the framework of a certain organizational form of the enterprise. The choice of form depends partly on the personal interests and profession of the entrepreneur, but is mainly determined by objective conditions: field of activity; availability of funds; the merits of certain forms of enterprise; state of the market.
The form of entrepreneurship is a system of norms that determines the internal relations between partners in an enterprise, on the one hand, and the relations of this enterprise with other enterprises and government bodies, on the other. There are the following main forms of entrepreneurship:
individual;
collective;
corporate.
These forms, in turn, are classified into: small and medium; large scale.
Individual forms without forming a legal entity in the form of an enterprise are classified as initiative individual entrepreneurship. The entrepreneur's capital is not allocated from his personal property. The risk extends to his entire property.
At the end of the 20th century. collective forms of entrepreneurship have taken a dominant position - both in small and large-scale businesses.
Despite the differences in state legislation, world practice indicates the presence of the following collective forms of business activity:
business partnerships;
business societies;
joint stock companies;
associations, unions.
The legal name of these forms of collective entrepreneurship in individual countries may change over time, but their organizational forms and economic content are largely preserved, improved and remain almost unchanged for decades.
The purpose of the work is to consider the legal basis for the activities of business companies, types of business companies, as well as to compare the possibilities of using different types of business companies. IN course work We will compare individual aspects of legal regulation of the three most common organizational and legal forms of legal entities - open and closed joint-stock companies and limited liability companies. As for other organizational and legal forms provided for by the Civil Code of the Russian Federation, due to their inherent specific features, the possibility of using them in business practice is significantly limited.
1. Basic provisions on business companies
Business companies are organizations created by one or more persons by combining (separating) their property to conduct business activities. Business companies are among the so-called. "capital pools".
Economic companies are a generic concept that denotes several independent types of commercial legal entities. They can be created in the form of a joint stock company, a limited liability company or an additional liability company.
What these forms have in common is that they authorized capital is divided into shares. This is what distinguishes business societies from other commercial organizations.
Property created through the contributions of founders (participants), as well as produced and acquired by a business company in the course of its activities, belongs to it by right of ownership.
Participants are not liable for the obligations of the company (with the exception of companies with additional liability), and their business risk is limited to the amount of contributions to the authorized capital. Therefore, it is the size of the company’s authorized capital that is the main guarantee of the interests of creditors.
Reducing the size of the company's authorized capital is possible only after notifying all its creditors, who in this case acquire the right to demand early termination or fulfillment of obligations and compensation for losses (as in the case of reorganization).
The minimum amount of authorized capital for joint stock companies is established by the Federal Law “On Joint Stock Companies”, and for limited and additional liability companies by the Federal Law “On Limited Liability Companies”. According to these regulations, the minimum authorized capital of open joint-stock companies is determined to be at least 1000 times the amount minimum size wages, and for all other companies, including closed joint-stock companies, in the amount of at least 100 times the minimum wage.
Contributions to the authorized capital may include money, securities, other things or property rights or other rights that have a monetary value. The main criterion for the admissibility of certain contributions to the authorized capital is their ability to increase the amount of the company's assets. Therefore, for example, the law does not allow contributions to the authorized capital of business companies by offsetting the founder’s claims to the company (clause 2 of article 90 and clause 2 of article 99 of the Civil Code). This reduces the company's liabilities, but does not increase its assets, i.e. available property.
The cost of contributions made to the authorized capital is determined by agreement of the parties, but in some cases is subject to independent expert assessment(clause 6 of article 66 of the Civil Code).
Participants of a business company have the right:
participate in the management of the company’s affairs, except for cases provided for by the law on joint stock companies;
receive information about the activities of the company and get acquainted with its accounting and other documentation in the prescribed manner constituent documents ok;
take part in the distribution of profits;
receive, in the event of liquidation of the company, part of the property remaining after settlements with creditors, or its value.
Participants in a business company may have other rights provided for by the constituent documents or laws on companies.
Participants of a business company are obliged to:
make contributions in the manner, amounts, methods and within the time limits provided for by the constituent documents;
not to disclose confidential information about the activities of the partnership or company.
Participants in a business company may also bear other responsibilities provided for by its constituent documents.
2. Types of business entities
Economic partnership is a union individuals, the main goal of which is to make a profit. The company's property belongs to the entire organization by right of ownership. A partnership can be full or limited. All members of the company are liable for the debts of their organization with their own property. At the same time, in a limited partnership there are general partners who have the right to manage, and limited partners (investors) who are deprived of such a right.
Economic a company is a commercial organization that owns shared property (capital), divided into contributions of participants. A legal entity conducts business activities aimed at generating profit. An organization can take the form of an additional liability company (ALC) or limited liability company (LLC), a closed or open joint stock company (CJSC or OJSC). Participants in a legal entity are liable for the company’s debts only to the extent of their contributions.
There are several fundamental differences between business entities and partnerships.
They were formed due to certain traditions and are enshrined in regulatory legal acts. Firstly, this concerns the participants legal entities. Members of an LLC, OJSC or ODO can be organizations and citizens, with the exception of a number of restrictions. Only private entrepreneurs or business entities can be participants in the partnership. There is a difference in securing the debts of a legal entity. For the obligations of the partnership, the participants are liable with all their own property, for the debts of the business company - only within the limits of their share.
Secondly, there is a difference in approaches to managing an organization and the freedom to leave it. You can freely sell, donate, or transfer your share in an LLC, OJSC or ODO. If we are talking about a business partnership, then here in general case only compensation is provided in case of withdrawal. Members of a general partnership can alienate their shares only with the consent of other participants in the organization.
1) Composition of the legal entity. The partnership may be represented commercial organizations(private entrepreneurs and firms), in a business company - any individuals and legal entities (within the limits of the law).
2) Management. The partnership is governed by its members by convening general meeting, the business company creates its own administration.
3) Responsibility of members. For the debts of the partnership, its participants are liable with their own property. Members of a business company only bear losses within the limits of their contribution in the event of unprofitable activities of the enterprise.
4) Alienation of shares. A joint stock company (with the exception of a closed joint stock company) assumes free disposal of shares or its part of the property. Exiting a business partnership is much more difficult and can sometimes only involve obtaining a share of its property.
29 The concept of business partnerships and their types.
IN Russian legislation under business partnerships
refers to contractual associations of several persons for the joint conduct of business activities under common name.
There is a distinction between a general partnership and a limited partnership.
1) General partnership- contractual, voluntary association of participants to conduct business activities. Characteristic feature a general partnership is high degree and the extent of the property liability of its participants for the fulfillment of their obligations. In the event of debts of the partnership, its participants are liable for obligations not only with the property that they contributed and combined for business, but also with all their personal property. Members of a general partnership bear unlimited liability for the obligations of the partnership. Management of the activities of a general partnership is carried out by general agreement of all participants. Each participant in the partnership, regardless of whether he is authorized to conduct the affairs of the partnership, has the right to familiarize himself with all documentation on the conduct of affairs. Each participant in a general partnership has the right to act on behalf of the partnership. Being by its nature an association of persons, a general partnership cannot consist of a single participant, and if this happens, it must be transformed into a business company or liquidated.
2) Partnership of Faith like a general partnership, it is an association of several persons and (or) legal entities on the basis of an agreement between them for the purpose of conducting a joint economic activity. But the fundamental difference between a limited partnership and a general partnership is that only a part of its members, called general partners, bear full joint liability for the obligations of the partnership with all their property. The other part, in the form of members-investors, bears limited liability and is liable for obligations only within the limits of their contribution (capital shares. Management of the activities of the limited partnership is carried out by general partners. Investors do not have the right to participate in the management and conduct of affairs of the limited partnership, or act on its behalf otherwise than by proxy. They do not have the right to challenge the actions of the general partners in the management and conduct of the affairs of the partnership. A limited partnership is liquidated upon the departure of all investors participating in it. However, instead of liquidation, general partners have the right to transform a limited partnership into a general partnership. Faith, including in the event of bankruptcy, investors have a priority right over general partners to receive contributions from the property of the partnership remaining after the satisfaction of the claims of its creditors.The remaining property of the partnership after this is distributed between the general partners and investors in proportion to their shares in the joint capital of the partnership.
30 The concept of business entities and their types.
Business societies
are understood as organizations created by one or more persons by combining (separating) their property to conduct business activities, and the personal participation of members of the company in its activities is not necessary.
Business companies include a limited liability company, an additional liability company, a joint stock company and subsidiaries and dependent companies.
1) Limited Liability Company
A limited liability company is a company established by one or more persons, the authorized capital of which is divided into shares of the size determined by the constituent documents. An LLC can be founded by one person, who becomes its sole participant. An LLC cannot have another business entity consisting of one person as its sole participant. An LLC participant has the right to leave the LLC at any time, regardless of the consent of its other participants. The number of LLC participants should not exceed fifty.
2) Company with additional liability
A company with additional liability is a company founded by one or more persons, the authorized capital of which is divided into shares of sizes determined by the constituent documents; Participants of such a company jointly and severally bear subsidiary liability for its obligations with their property in the same multiple of the value of their contributions, determined by the constituent documents of the company. Liability is subsidiary, which means that claims can be made against participants only if the company’s property is insufficient for settlements with creditors. liability is joint and several, therefore creditors have the right to make demands on any of the participants who is obliged to satisfy them. participants bear equal responsibility. The corporate name of a company with additional liability must contain the name of the company and the words “with additional liability.”
3) Joint stock company
A joint stock company (JSC) is a company whose authorized capital is divided into a certain number of shares; The participants of the joint-stock company (shareholders) are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the limits of the value of the shares they own. The authorized capital of a joint-stock company is represented by shares. upon leaving the company, the shareholder cannot demand from the company any payments or distributions due to his share; he receives compensation for the alienated shares. A distinctive feature of a joint-stock company is that it allows people who do not want or cannot engage in business to invest money in production and trade. By purchasing shares, they give money for the development of the business, and become co-owners of the company without the risk of losing more than they spent on purchasing securities if it fails.
JSCs are divided into open JSCs (OJSC) and closed JSCs (CJSC).
A joint stock company, the participants of which can alienate the shares they own without the consent of the shareholders, is recognized as open JSC.
Closed joint stock company(common abbreviation - CJSC) is a joint-stock company, the shares of which are distributed only among the founders or a predetermined circle of persons (as opposed to an open company). Shareholders of such a company have a preemptive right to purchase shares sold by other shareholders. The number of participants in a closed joint stock company is limited by law. As a rule, a closed joint stock company is not required to publish financial statements to the public, unless otherwise provided by law.
4) Subsidiaries and dependent companies
subsidiaries, if another (main) business company or partnership, by virtue of a predominant participation in its authorized capital, or in accordance with an agreement concluded between them, or otherwise has the opportunity to determine the decisions made by such a company. The subsidiary is not liable for the debts of the parent company (partnership). In the event of insolvency (bankruptcy) of a subsidiary due to the fault of the main company (partnership), the latter bears subsidiary liability for its debts.
The economic company is recognized dependent, if another (predominant, participating) company has more than twenty percent of the voting shares of a joint stock company or twenty percent of the authorized capital of a limited liability company.
Business societies are enterprises or other business entities created by legal entities or citizens by combining their property and participating in the business activities of the company for the purpose of making a profit.
Business companies can be created in the form of a joint stock company, a limited liability company or with additional liability.
The main types are joint stock companies, both open and closed, limited liability companies and its variety - a company with additional liability.
Economic companies- These are exclusively statutory associations.
They are called capital pools. Participants in an economic organization can have any status: they can be citizens, legal entities (commercial and non-commercial), public legal entities.
A business company can function and be created with only one participant. . Peculiarities:
The main constituent document of business companies is the charter;
Participants in business companies are not required to take part in the entrepreneurial activities of their organizations;
Any business company requires the presence of an internal structure, while for business partnerships this is not necessary;
The authorized capital of a business company is the main guarantee of the rights of its creditors, which means that if a business entity is unable to meet its obligations (insolvency), its participants do not bear subsidiary liability, with the exception of additional liability companies (ALS); therefore, in this case they are liquidated on the grounds of bankruptcy.
Limited Liability Company- is a company established by one or several persons, the constituent capital of which is divided into shares of sizes determined by the constituent documents.
The rights and obligations of participants in a limited liability company are determined in the constituent agreement and charter
Additional liability company - recognized by the society, the participants cat. jointly and severally bear responsibility for its obligations with their property in the same multiple of the value of their contributions.
Such liability arises only in a subsidiary manner. Otherwise, the status of this business company is similar to the status of a limited liability company ( clause 3 art. 95 GK).
Consequently, this organizational and legal form differs from the design of a limited liability company only in the presence of additional liability of company participants for its debts with their personal property. However, such liability does not apply to the entire property of the participants, but only to a predetermined part of it, specified in the constituent documents of the company (for example, three or five times the value of the contribution to the authorized capital). In the event of bankruptcy of one of the participants, its additional liability is distributed among the remaining participants. total amount additional guarantees to the company's creditors remains unchanged. Thus, an additional liability company occupies intermediate position between partnerships (with unlimited liability of their participants) and companies (excluding the liability of participants).
Joint Stock such economic activity is recognized society, whose authorized capital is divided into a certain number of equal shares, expressed in securities - shares, and its participants are not liable for the company’s debts and bear only the risk of losses within the value of the shares they own.
The main features of a joint-stock company, just like in an LLC, are the division of the authorized capital into shares and the absence of liability of participants for the debts of the company. Differences from LLC: the authorized capital of a JSC is formalized in shares. Only joint stock companies are allowed to issue shares. A shareholder's participation in the company is formalized only in shares. This makes participation in society anonymous. The JSC is guaranteed against a decrease in its property due to the withdrawal of participants from it, because withdrawal of a participant from the community m.b. carried out only by alienating shares to another person and he cannot demand from the company any payments due to his share. Open joint stock companies have the right to sell their shares not only among a predetermined circle of people, but also through the free sale of shares to everyone. Shareholders of open companies have the right to freely alienate their shares to both other shareholders and third parties.
CJSCs can distribute their shares only among the founders or other predetermined circle of persons. Consequently, the number of participants in such societies is initially limited (no more than 50). In addition, shareholders of a closed company have the right of pre-emption to purchase shares sold by other shareholders of this company. For closed joint stock companies there is no obligation to conduct public affairs (except for cases of public sale of bonds).
2.1 Limited liability company
Previously, the organizational and legal form of an enterprise, which practically coincided with a limited liability company (LLC), was a Limited Liability Partnership (LLP). Its legal status was provided for and regulated today by the largely repealed Law No. 445-1 of December 25, 1990 “On enterprises and business activities in the RSFSR.” The Civil Code of the Russian Federation, adopted by the State Duma on October 21, 1994 and which came into force in terms of regulating relations related to the main forms of business organization (Chapter 4 “Legal Entities”), since December 1994, extended the relevant rules on limited liability companies (LLC ) for limited liability partnerships. Besides, the federal law RF “On the entry into force of part one of the Civil Code Russian Federation» No. 52-FZ of November 30, 1994 established that the constituent documents of limited liability partnerships are subject to being brought into compliance with the norms of the Civil Code in the manner and within the time frame that will be determined when the Law on Limited Liability Companies is adopted.
The Law of the Russian Federation “On Limited Liability Companies” (hereinafter referred to as the Law on Companies) came into force on March 1, 1998. From this moment on, the constituent documents of limited liability companies and Limited Liability Partnerships created before March 1, 1998 are applied to the extent , which does not contradict the Law on Companies. In addition, the Law on Companies obliges the constituent documents of these legal entities to be brought into compliance with it no later than January 1, 1999.
However, this rule does not apply to all companies; LLCs and LLPs, the number of participants of which as of March 1, 1998 exceeds 50, must, before July 1, 1998, be transformed into joint-stock companies or production cooperatives or reduce the number of participants to 50.
The basis of the norms of the Law on Companies is the Civil Code of the Russian Federation, which establishes general provisions on commercial organizations, including companies. In addition, the Civil Code indicates the need to adopt a special law on limited liability companies, and the adopted Law on Companies develops and regulates in detail the provisions laid down in the Civil Code.
A limited liability company, in accordance with the Civil Code and the Law on Companies, is a business company whose authorized capital is divided between participants into shares of certain sizes. Its participants bear the so-called limited liability for the activities of the company, i.e. they are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the value of the contributions they made. The law allows a company participant to pay the due share in the authorized capital over a certain time, and not at a time. In this case, participants who have not fully contributed to the authorized capital of the company bear joint liability for its obligations to the extent of the value of the unpaid part of the contribution of each of its participants.
Only the company is the owner of the property it owns, including contributions of founders (participants) to the authorized capital of the company. Consequently, the participants of the company have in relation to it only obligatory, but not real rights to property. A company participant can claim his property only in cases of its liquidation, upon his withdrawal from it and other cases when it must make settlements with him, for example, in the event of failure to obtain consent from the remaining participants in the company to alienate a share to another participant.
The company is a commercial organization, making profit for it is the main goal of its activities. This means that it can carry out any type of business activity, unlike non-profit organizations that have the right to conduct entrepreneurial activity only insofar as it serves the purposes for which they were created. Thus, for societies the principle “everything is permitted that is not prohibited by law and charter” applies. Certain types activities, the list of which is determined by federal laws, the company can engage in only on the basis of a special permit (license). The types of activities subject to licensing are determined by the Law of the Russian Federation of September 16, 1998 No. 158-FZ “On licensing of certain types of activities.” If the conditions for granting a special permit (license) to carry out a certain type of activity provide for the requirement to conduct such activity as exclusive, then the company during the period of validity of the special permit (license) has the right to engage only in those types of activities that are provided for by the special permit (license) and related types activities.
The company is considered created as a legal entity from the moment of its state registration. The legal capacity of a company ceases with its liquidation and the entry of this into the unified state register of legal entities. Unless other conditions are specified in the charter, the company operates without a time limit.
Participants in the company, as noted above, have “limited” responsibility for its activities. In turn, the company is liable for its obligations with all its property and is not liable for the obligations of its participants. However, in certain cases there may be exceptions to this rule. This Law creates a significant risk for the participant with the subsequent possibility of his liability arising in the event of insolvency (bankruptcy) of the company caused by the guilty actions of the participant.
The company must have a full name in Russian and a postal address at which it can be contacted. The location of the company as a general rule is determined by the place of its state registration. However, the constituent documents may establish that it is the permanent location of its management bodies or the main place of its activities. The legislator obliges the company to use the words “limited liability company” or the abbreviation LLC in the full and abbreviated corporate name of the company, respectively, and allows the use of the name of the company in any language.
2.2. Additional liability company
A commercial organization, the authorized capital of which is divided into shares of predetermined sizes, formed by one or more persons jointly and severally bearing subsidiary liability for its obligations in an amount that is a multiple of the value of their contributions to the authorized capital, is called an additional liability company.
The basic provisions on companies with additional liability are established by Art. 95 Civil Code. The specificity of an ALC lies in the special nature of the property liability of participants for its debts:
liability is subsidiary, claims can be made against participants only if the company’s property is insufficient for settlements with creditors;
liability is joint and several, creditors have the right to make demands in full or in any part against any of the participants who is obliged to satisfy them;
participants bear equal liability, i.e. equally multiple to the size of their contributions to the authorized capital;
the total amount of liability of all participants is determined by the constituent documents as a multiple (two-, three-fold, etc.) of the size of the authorized capital.
The corporate name of a company with additional liability must contain the name of the company and the words “with additional liability”.
In everything that is not specified in Art. 95, the rules of the Civil Code regarding LLCs apply to ALCs. It follows from this that the rules of the Federal Law “On Limited Liability Companies” will be applied to ALCs by analogy, since this will not contradict Art. 95 and the norms of this law.
This organizational and legal form differs from the design of a limited liability company only in the presence of additional liability of company participants for its debts with their personal property. However, such liability does not apply to the entire property of the participants (as in a general partnership), but only to a predetermined part of it, provided for by the constituent documents of the company. In the event of bankruptcy of one of the participants, his additional liability is distributed among the remaining participants, as if “increasing” to their shares (proportionally or in another order, for example, equally). Therefore, the total amount of additional guarantees to the company’s creditors remains unchanged. Thus, a company with additional liability occupies an intermediate position between partnerships (with unlimited liability of their participants) and companies (excluding the liability of participants).
This legal structure in the domestic legal order was enshrined in the Civil Code of 1922, which called it a “limited liability partnership.” In contrast to the shortcomings of the generally accepted use of this concept, here it was used in strict accordance with the essence of the matter. This is exactly how the Russian legislator during the NEP represented the new construction of a limited liability company for that time.
2.3 Joint stock company
The concept of a joint stock company
In a market economy, enterprises and organizations of various organizational and legal forms operate, differing from each other in the ways their owners exercise their ownership rights to their property, cash, securities, including shares, of these properties.
One of such organizational and legal forms through which property rights are exercised is a joint stock company. In accordance with Article 96 Civil Code In the Russian Federation, a joint-stock company is a company whose authorized capital is divided into a certain number of shares; Participants of a joint-stock company (shareholders) are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the limits of the value of the shares they own. At the same time, shareholders who have not fully paid for the cost of the shares bear joint liability for the obligations of the joint-stock company to the extent of the unpaid portion of the cost of the shares they own.
A joint stock company is a commercial organization, i.e. one that pursues making a profit as the main goal of its activities (clause 1 of Article 50 of the Civil Code of the Russian Federation), as a legal entity.
In turn, shareholders own shares as property rights - securities that do not have a proprietary nature, although they give them certain rights. This means that the shareholder does not have the right to demand that the company return its shares to the company and return the money paid for them or other compensation. A shareholder can sell, donate or bequeath his shares in the manner prescribed by law. This limitation of a shareholder’s ability to withdraw from its membership is of great importance for the company: the stability of the authorized capital, the financial basis of the company, is guaranteed when there is a change of shareholders.
Clause 1, part 2, of the Law of the Russian Federation “On Joint-Stock Companies” (hereinafter referred to as the Law) also contains a rule stating that shareholders are not liable for the obligations of the company and bear the risk of losses associated with its activities, within the limits of the value of the shares they own. This means that in the event of bankruptcy of the company, respectively, in the event of depreciation of the shares, the shareholder loses the funds spent by him on the acquisition of shares.
According to Part 3 of Clause 1 of Article 2 of the Law, shareholders who have not fully paid for the shares bear joint liability for the obligations of the company to the extent of the unpaid portion of the value of the shares they own. This exception is based on the requirement of paragraph 1 of Article 34 of the Law, according to which the shares of a company upon its establishment must be fully paid within a year from the date of its registration, and additional shares of the company - no later than one year from the date of their acquisition (placement).
Clause 3 of Article 2 of the Law reproduces the provisions of Article 49 of the Civil Code of the Russian Federation in relation to joint-stock companies, according to which a legal entity may have civil rights, corresponding to the goals of the activity provided for in its constituent documents, and bear the responsibilities associated with this activity. Commercial organizations, with the exception of unitary enterprises and other types of organizations provided for by law, may have civil rights and bear civil responsibilities necessary to carry out any types of activities not prohibited by law. society, is the charter. He is... equity capital society//Law, 1997, No. 5, p. 35. 7. Kashanina T.V. Household partnerships and society: legal regulation of intra-company...
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General provisions. The decisive ones among commercial legal entities (business companies) in the field of entrepreneurship are business companies that have the greatest significance and provide great opportunity manifestations of initiative.
Business companies occupy important place among business entities operating on the territory of Ukraine.
Their activities are regulated by the Economic Code of Ukraine, the Civil Code of Ukraine and the Law of Ukraine “On Business Companies” dated November 19, 1991.
Articles 79-92 of the Economic Code of Ukraine determine the basic rules for the activities of business entities.
According to Art. 113 of the Civil Code of Ukraine, a business company is a legal entity whose authorized (share) capital is divided into shares between participants.
Business societies can be created in the form full society, limited company, limited or additional liability company, joint stock company.
A participant in a business company can be an individual or a legal entity. Restrictions on participation in business companies may be established by law.
A business company, in addition to full and limited companies, can be created by one person, who becomes its sole participant.
The business company is the owner of: -
property transferred to him by the company's members as a contribution to the authorized (share) capital; -
products produced by the company as a result of economic activities; -
income received; -
other property acquired on grounds not prohibited by law.
A contribution to the authorized (share) capital of a business company can be money, securities, other things or property or other alienable rights that have a monetary value, unless otherwise provided by law. The monetary valuation of the contribution of a participant in a business company is carried out by agreement of the company's participants, and in cases established by law, it is subject to independent expert verification (ST.115GK).
Art. 116 of the Civil Code determines the rights of participants in a business company.
Participants of a business company have the right, in the manner established by the constituent document of the company and the law: -
take part in the management of the company in the manner specified in the constituent document, except in cases established by law; -
take part in the distribution of the company’s profits and receive part of it (dividends); -
go out to in the prescribed manner from society; -
alienate shares in the authorized (share) capital of the company, securities that certify participation in the company, in the manner prescribed by law; -
receive information about the activities of the company in the manner established by the constituent document.
Participants in a business company may also have other rights established by the constituent document of the company and the law.
According to Art. 117 of the Civil Code, participants in a business company are obliged to: -
comply with the founding document of the company and implement the decisions of general meetings; -
fulfill their obligations to the company, including those related to property participation, as well as make contributions (pay for shares) in the amount, manner and means provided for by the constituent document; -
not to disclose trade secrets and confidential information about the activities of the company.
Participants in a business company may also have other obligations established by the company’s constituent document and law.
In accordance with the Law “On Business Societies”, contributions of participants and founders of a company can be buildings, structures, equipment and other material assets, securities, land in accordance with the Land Code of Ukraine, the rights to use water and other natural resources, buildings, structures, equipment, as well as other property rights (including intellectual property), cash, including in foreign currency.
The contribution, valued in hryvnias, constitutes the share of the participant and founder in the authorized capital. The procedure for assessing deposits is determined in the constituent documents of the company, unless otherwise provided by the legislation of Ukraine.
It is prohibited to use budget funds, funds received on credit and on collateral for the formation of the authorized capital.
The company creates a reserve (insurance) fund in the amount established by the constituent documents, but not less than 25 percent of the authorized capital, as well as other funds provided for by the legislation of Ukraine or the constituent documents of the company.
Transactions concluded on behalf of the company before its registration are recognized as concluded by it only subject to their subsequent approval by the company.
The State Tax Inspectorate filed a claim with the arbitration court to invalidate the transaction concluded by the company and the company on the development of design documentation, citing the conclusion of this transaction before the state registration of the company and considering it contrary to the interests of the state and society. By the decision of the arbitration court, the claim was satisfied with reference to the non-compliance of the transaction with the requirements of the law and its signing for the purpose of distortion financial statements for tax evasion and mandatory payments. ^
By the decision of the supervisory authority, the decision in the case was canceled, the claim was rejected due to the compliance of the concluded transaction with the requirements of the law and the lack of proof of the defendants' intent to achieve a goal contrary to the interests of the state and society. (
The State Tax Inspectorate appealed to the Supreme Arbitration Court of Ukraine with a request to verify and cancel this decision for the reasons specified in the court decision.
Having checked the case materials and the applicant’s arguments, the judicial panel of the Supreme Arbitration Court of Ukraine for the review of decisions, rulings, and resolutions established the following
The company and the company entered into a deal under which the company is obliged to perform certain work. At the time of the conclusion of this transaction, state registration of the company had not been carried out.
In accordance with Article 6 of the Law of Ukraine “On Business Companies”, the company acquires the right of a legal entity from the date of state registration.
Art. 8 of this Law provides that a company can enter into transactions only after its registration. Transactions concluded on behalf of the company before registration are recognized as concluded by it only subject to their subsequent approval by the company.
From the case materials, it was clear that, although the disputed transaction was concluded before the company acquired legal capacity, the obligations under the transaction were fulfilled by the company after its state registration: the design documentation was transferred to the customer on the basis of the relevant act, and the cost of the relevant work was paid to the customers.
This indicates the companies' subsequent approval of the disputed transaction.
Considering that the state tax inspectorate did not provide evidence to the arbitration court about the purpose of the transaction, which was contrary to the interests of the state and society, the decision of the arbitration court was left unchanged [Business. Accounting. - 2001. - No. 28/2. - P.24-25].
The Economic Code of Ukraine, the Civil Code of Ukraine and the Law “On Business Companies” name five types of business companies: full companies, limited companies, limited liability companies, additional liability companies and joint stock companies.
Among these types, the most common in business practice in Ukraine are joint-stock companies and limited liability companies.
Full Society
In accordance with Article 119 of the Civil Code of Ukraine, a full public company is a company whose participants, in accordance with the agreement concluded by them, carry out entrepreneurial activities in the name of the company and jointly and severally bear additional (subsidiary) liability for its obligations with all property, belonging to them.
A person can be a member of only one general partnership.
A participant in a general partnership does not have the right, without the consent of other participants, to carry out transactions on his own behalf and in his own interests or in the interests of third parties that are similar to those that constitute the subject of the company’s activities.
In case of violation of this rule, the company has the right, at its own discretion, to demand from such participant compensation for damages caused to the company or transfer to the company of all benefits acquired through such damages.
The name of the general company must contain the names (names)
h) all its participants, the words “full society” or contain the name (name) of one or more participants with the addition of the words “and company”, as well as the words “full society”.
According to Art. 120 of the Civil Code, a general society is created and operates on the basis of a constituent agreement, which is signed by all its participants.
The founding agreement of a general company, in addition to the information provided for in Article 88 of the Civil Code, must contain information about: the size and composition of the company's share capital; the size and procedure for changing the shares of each participant in the share capital; the size, composition and timing of their contributions.
The management of the affairs of a full society is carried out by the general consent of all participants. The founding agreement of the company may provide for cases when the decision is made by a majority vote of the participants. Each participant in a general partnership has one vote, unless the constituent agreement provides for a different procedure for determining the number of votes.
A general company differs from a joint stock company and limited and additional liability companies in several ways: -
lack of legal requirements regarding the size and procedure for the formation of property, the resolution of these issues is the prerogative of the participants and is fixed in the constituent agreement; -
the constituent document is the constituent agreement; -
the absence of management bodies of the company, since the management of the company’s affairs is carried out by its participants; -
members of the company jointly and severally bear subsidiary liability for the obligations of the company with all their property, which may be subject to foreclosure; -
legislatively established restrictions for participants to compete with a general company and a prohibition of foreclosure on the share of a company participant for his own obligations.
The most characteristic distinctive feature of a full society is the establishment of joint, essentially unlimited liability of the company's participants with all their property for the obligations of the company. Such liability means that each participant in a general partnership is liable for the obligations of the company with all his property, regardless of his share in the general partnership and the share of participation of other participants. If it is impossible to collect the obligations of the company from one of the participants (for example, due to his bankruptcy), his liability for the obligations of the company must be borne by the remaining participants of the company in proportion to their contributions.
Since the rule on the liability of company participants is imperative, it is not allowed to conclude an agreement between participants to limit liability. If such an agreement between the company's participants to change or reduce liability is nevertheless concluded, it will not have legal force. These rules apply not only to the founders of the company, but also to those of its participants who later joined the company after its state registration.
A general society is brought closer to a company with additional liability by the increased responsibility of the company's participants, however, this responsibility has a different nature: if in a company with additional liability liability concerns only a certain part of the property belonging to the participants, in the same short amount for all participants to the amount of contributions made by them, then in a full society, this responsibility is not limited to such limits, but applies to all the property of the participants.
This type of business company is attractive to its potential counterparties, since its advantage is a strict system of responsibility for participants, which serves as an additional guarantee in business relations. At the same time, the system of responsibility of each of the participants in a full society for all the others presupposes the existence of personal trust relationships between the participants, which narrows the scope of application of this form of economic society.